Existing law makes it a crime to import into the state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of an elephant. Existing law exempts the possession with intent to sell, or sale of the dead body, or any part or product thereof, of any elephant before June 1, 1977, or the possession with intent to sell or the sale of any such item on or after June 1, 1977, if the item was imported before January 1, 1977.

This bill would delete this exemption. By changing the definition of a crime, this bill would impose a state-mandated local program.

This bill would make it unlawful to purchase, sell, offer for sale, possess with intent to sell, or import with intent to sell ivory or rhinoceros horn, except as specified, and would make this prohibition enforceable by the Department of Fish and Wildlife. The bill would make a violation of this provision or any rule, regulation, or order adopted pursuant to this provision a misdemeanor subject to specified criminal penalties. By creating a new crime, the bill would impose a state-mandated local program. In addition to the specified criminal penalties, the bill would authorize the department to impose an administrative penalty of up to $10,000 for a violation of this provision or any rule, regulation, or order adopted pursuant to this provision.

This bill would provide that the provisions of this bill are severable.

This bill would make these provisions operative on July 1, 2016.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a crime to import into the state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of an elephant. Existing law exempts the possession with intent to sell, or sale of the dead body, or any part or product thereof, of any elephant before June 1, 1977, or the possession with intent to sell or the sale of any such item on or after June 1, 1977, if the item was imported before January 1, 1977.

This bill would delete this exemption. By changing the definition of a crime, this bill would impose a state-mandated local program.

This bill would make it unlawful to purchase, sell, offer for sale, possess with intent to sell, or import with intent to sell ivory or rhinoceros horn, except as specified, and would make this prohibition enforceable by the Department of Fish and Wildlife. The bill would make a violation of this provision or any rule, regulation, or order adopted pursuant to this provision a misdemeanor subject to specified criminal penalties. By creating a new crime, the bill would impose a state-mandated local program. In addition to the specified criminal penalties, the bill would authorize the department to impose an administrative penalty of up to $10,000 for a violation of this provision or any rule, regulation, or order adopted pursuant to this provision.

This bill would provide that the provisions of this bill are severable.

This bill would make these provisions operative on July 1, 2016.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a crime to import into the state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of an elephant. Existing law exempts the possession with intent to sell, or sale of the dead body, or any part or product thereof, of any elephant before June 1, 1977, or the possession with intent to sell or the sale of any such item on or after June 1, 1977, if the item was imported before January 1, 1977.

This bill would delete this exemption. By changing the definition of a crime, this bill would impose a state-mandated local program.

This bill would prohibit a person from purchasing, selling, offering for sale, possessing with intent to sell, or importing make it unlawful to purchase, sell, offer for sale, possess with intent to sell, or import with intent to sell ivory or rhinoceros horn, except as specified, and would make this prohibition enforceable by the Department of Fish and Wildlife. The bill would make a violation of this provision or any rule, regulation, or order adopted pursuant to this provision a misdemeanor subject to specified criminal penalties. By creating a new crime, the bill would impose a state-mandated local program. In addition to the specified criminal penalties, the bill would authorize the department to impose a civil an administrative penalty of up to $10,000 for a violation of this provision or any rule, regulation, or order adopted pursuant to this provision. The bill would authorize the department to permit the purchase, sale, offer for sale, possession with intent to sell, or importation with intent to sell ivory or rhinoceros horn for educational or scientific purposes by a bona fide educational or scientific institution if certain criteria are satisfied.

This bill would provide that the provisions of this bill are severable.

This bill would make these provisions operative on July 1, 2016.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law makes it a crime to import into the state for commercial purposes, to possess with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of an elephant. Existing law exempts the possession with intent to sell, or sale of the dead body, or any part or product thereof, of any elephant before June 1, 1977, or the possession with intent to sell or the sale of any such item on or after June 1, 1977, if the item was imported before January 1, 1977.

This bill would delete this exemption. By changing the definition of a crime, this bill would impose a state-mandated local program.

This bill would prohibit a person from purchasing, selling, offering for sale, possessing with intent to sell, or importing with intent to sell ivory or rhinoceros horn, except as specified, and would make this prohibition enforceable by the Department of Fish and Wildlife. The bill would make a violation of this provision or any rule, regulation, or order adopted pursuant to this provision a misdemeanor subject to specified criminal penalties. By creating a new crime, the bill would impose a state-mandated local program. In addition to the specified criminal penalties, the bill would authorize the department to impose a civil penalty of up to $10,000 for a violation of this provision or any rule, regulation, or order adopted pursuant to this provision. The bill would authorize the department to permit the purchase, sale, offer for sale, possession with intent to sell, or importation with intent to sell ivory or rhinoceros horn for educational or scientific purposes by a bona fide educational or scientific institution if certain criteria are satisfied.

This bill would provide that the provisions of this bill are severable.

This bill would make these provisions operative on July 1, 2016.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 96

Author:(Atkins)

As Amended Ver:June 17, 2015

Majority vote

Original Committee Reference: W., P., & W.

SUMMARY: Makes it unlawful to purchase, sell, offer for sale, possess with intent to sell, or import with intent to sell, ivory or rhinoceros horn in California, with specified exceptions. Makes a violation of these prohibitions a misdemeanor, subject to both criminal and administrative penalties.

The Senate amendments:

1. Provide that possession of ivory or rhinoceros horn in a retail or wholesale outlet commonly used for the buying or selling of similar items is prima facie evidence of possession with intent to sell, but that this evidence shall not preclude a finding of intent to sell based on other evidence of intent.

2. Clarifies the Department of Fish and Wildlife's (DFW's) authority to impose administrative penalties for violations, and provides that administrative penalties shall be deposited in the Fish and Game Preservation Fund and used for law enforcement purposes upon appropriation of the Legislature.

3. Authorizes half of a fine, but not to exceed $500, imposed by a court for a violation of this bill to be paid to a person giving information leading to a conviction or judgment.

EXISTING LAW:

1. Makes it unlawful to import into this state for commercial purposes with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of any elephant. Violations are punishable as a misdemeanor, subject to a fine of not less than $1,000 and not more than $5,000, or imprisonment in county jail for not more than six months, or both the fine and imprisonment, for each violation.

2. Provides in uncodified language, that no provision of law shall prohibit the possession with intent to sell, or sale of the dead body, or any part or product thereof, of any elephant prior to 1977, or the possession with intent to sell or the sale of any such item on or after such date which was imported prior to the effective date of the act in 1977. Further provides that the burden of proof to demonstrate that such items were imported prior to the effective date of the act shall be placed upon the defendant.

FISCAL EFFECT:

According to the Senate Appropriations Committee:

1. Minor and absorbable costs to the Fish and Game Preservation Fund (special/General Fund) for the Department of Fish and Wildlife (DFW) to update regulations.

2. Unknown cost pressures, potentially up to $1.2 million annually ongoing and $1 million in one-time costs, to the Fish and Game Preservation Fund (special/General Fund) to DFW for enforcement. These costs may be at least partially offset by criminal and civil penalties.

COMMENTS:

The author has introduced this bill to protect elephants and rhinoceros from poaching, by eliminating the market value of poached ivory and rhinoceros horn in California. Background information provided by the author's office notes that the existing law, by grandfathering in ivory possessed and acquired prior to June 1, 1977, makes it virtually impossible to enforce the ban on ivory, since it is very difficult to determine the age of the ivory. Although the existing law places the burden of proof on the defendant, that provision was never codified and therefore is rarely applied in court. In addition, the current law in California makes no reference to rhinoceros which are poached for their horns and are also imperiled. This bill addresses the loopholes in existing law that make enforcing the ban on importation and sale of ivory difficult by: a) repealing the exemption for ivory possessed or imported prior to 1977 (limited exceptions for musical instruments and antiques are retained); b) codifying the provision placing the burden of proof on the defendant to prove that the ivory meets the limited exceptions for musical instruments and antiques; c) adding express protection for rhinoceros; and d) increasing penalties for violations.

The Senate amendments make mostly minor changes relating to penalties and enforcement.

Worldwide most elephant and rhinoceros populations are in serious decline, and are classified as threatened, endangered or critically endangered. The United States (U.S.) is the second largest market for ivory in the world, after China. California provides the second largest market in the U.S. after New York. Both New York and New Jersey enacted new laws in 2014 banning the ivory trade.

According to the U.S. Fish and Wildlife Service (USFWS), a substantial amount of elephant ivory is illegally imported and enters the domestic market in the United States. The USFWS acknowledges it is extremely difficult to differentiate legally acquired ivory from ivory derived from elephant poaching. According to the USFWS, criminal investigations and anti-smuggling efforts have clearly shown that legal ivory trade can serve as a cover for illegal trade. As one example, USFWS and state officers seized more than two million dollars of illegal elephant ivory from two New York City retail stores in 2012. The USFWS advises that by significantly restricting ivory trade in the United States, it will be more difficult to launder illegal ivory into the market and thus reduce the threat of poaching to imperiled elephant populations. Involvement of transnational organized crime operations in the illicit ivory trade has also been documented by international authorities. In addition, numerous news outlets have reported on suspicions that ivory poaching is becoming a growing source of funding for several terrorist organizations, including the Janjaweed militia in Sudan and the Lord's Resistance Army in Uganda, and possibly including terrorist groups in Somalia.

Supporters emphasize this bill will clarify California's law prohibiting ivory importation and sale, protect endangered species, and aid in combating international terrorism. Supporters stress that elephant poaching may soon drive the species to the brink of extinction. In addition, trade from the ivory black market is now a crucial source for funding terrorist groups. Transnational organized crime has also increasingly taken part in the illegal trade because of the lucrative profits from ivory sales. If current poaching rates continue, elephants and rhinoceros could be extinct in a decade or less. Supporters further emphasize one of the most effective ways to protect elephants and rhinoceros is to eliminate the market by prohibiting the purchase and sale of ivory and rhinoceros horn.

The National Rifle Association (NRA) and California Rifle and Pistol Association continue to oppose this bill because they believe it would harm collectors and sportsmen who own firearms made with ivory, and would amount to a taking of property by prohibiting the sale of these items. The NRA argues that the exceptions in this bill for antiques do not adequately address these concerns because owners may not have the documentation to prove that the antique gun is more than 100 years old. In addition, the exception for bona fide antiques applies only to antiques with less than 5% ivory content, which would exclude some weapons that were lawfully purchased prior to the ban.

Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0001758

 THIRD READING  

Bill No: AB 96

Author: Atkins (D), et al.

Amended: 6/17/15 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 7-2, 6/23/15

AYES: Pavley, Allen, Hertzberg, Hueso, Jackson, Monning, Wolk

NOES: Stone, Vidak

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15

AYES: Lara, Beall, Hill, Leyva, Mendoza

NOES: Bates, Nielsen

ASSEMBLY FLOOR: 62-14, 6/2/15 - See last page for vote

SUBJECT: Animal parts and products: importation or sale of ivory and rhinoceros horn

SOURCE: East Bay Zoological Society

Humane Society of the United States

Natural Resources Defense Council

DIGEST: This bill modifies and expands the prohibition of the importation, sale, and purchasing of ivory and rhinoceros horn.

ANALYSIS:

Existing law:

1. Establishes at the federal level, laws governing wildlife importation including the Lacey Act, the Endangered Species Act (ESA) and the African Elephant Conservation Act. The Lacey Act makes it a federal offense to violate U.S. state, tribal or foreign wildlife trade statutes, treaties and regulations, and prohibits the import or sale of wildlife taken in violation of any federal, state, tribal of foreign wildlife law, among other provisions. The ESA seeks to conserve endangered and threatened species, and prohibits a person from importing or obtaining any species that is listed as threatened or endangered. The ESA implements the import and export regulations for wildlife noted in the text of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The African Elephant Conservation Act restricts the trade in African elephants and was motivated, in part, to help reduce poaching of African elephant populations.

2. Makes it illegal to import into California for commercial purposes with intent to sell, or to sell within the state, the dead body of any elephant or any part of it. Violations are punishable as a misdemeanor and are subject to a fine of between $1,000 and $5,000, or imprisonment in county jail for not more than six months, or both the fine and imprisonment, for each violation.

3. Provides in uncodified language that no provision of law shall prohibit the possession with intent to sell, or sale of the dead body of any elephant on or after June 1, 1977, or any part of or product made from it, or the possession with intent to sell or sale of any such item on or after such date which was imported prior to January 1, 1977.

4. Provides that the burden of proof is placed upon the defendant to demonstrate that the items described in (3) were imported prior to January 1, 1977.

This bill modifies and expands the prohibition on the importation or sale of ivory or rhinoceros horn in California. Specifically, this bill:

1. Prohibits a person from purchasing, selling, offering for sale, possessing with intent to sell, or importing with intent to sell, ivory or rhinoceros horn, with specified exceptions. Ivory means a tooth or tusk from a species of elephant, hippopotamus, mammoth, mastodon, walrus, warthog, whale, or narwhal, whether raw or worked, as specified.

2. Exempts from the prohibition all of the following:

1. State or federal employees undertaking a law enforcement activity.

2. Activities authorized by federal law, as specified.

3. Ivory or rhinoceros horn that is part of a musical instrument and is less than 20% by volume of the instrument, if the owner or seller provides historical documentation that the item was manufactured no later than 1975.

4. Ivory or rhinoceros horn that is part of a bona fide antique and is less than 5% by volume of the antique, if the owner or seller provides historical documentation that the antique is not less than 100 years old.

5. The purchase, sale, offer for sale, possession with intent to sell or import with intent to sell ivory or rhinoceros horn for educational or scientific purposes, as specified, including that the item was legally acquired before January 1, 1991, and was not transferred for financial gain or profit after July 1, 2016.

3. Creates a presumption that ivory or rhinoceros horn possessed in a retail or wholesale outlet commonly used for buying or selling of similar items is evidence of possession with intent to sell, as specified.

4. Authorizes criminal penalties for a violation of this bill as follows:

1. For a first conviction involving ivory or rhinoceros horn valued at $250 or less, the offense shall be a misdemeanor punishable by a fine of between $1,000 and $10,000, imprisonment in county jail for not more than 30 days, or both the fine and imprisonment;

2. For a first conviction involving ivory or rhinoceros horn valued at more than $250, the offense shall be a misdemeanor punishable by a fine of between $5,000 and $40,000, imprisonment in county jail for not more than one year, or both the fine and imprisonment;

3. For a second or subsequent conviction involving ivory or rhinoceros horn valued at $250 or less, the offense shall be a misdemeanor punishable by a fine of between $5,000 and $40,000, imprisonment in county jail for not more than one year, or both the fine and imprisonment; and

4. For a second or subsequent conviction involving ivory or rhinoceros horn valued at more than $250, the offense shall be a misdemeanor punishable by a fine of between $10,000 and $50,000 or an amount equal to two times the total value of the ivory or rhinoceros horn, whichever is greater, imprisonment in county jail for not more than one year, or both the fine and imprisonment.

5. Authorizes, in addition to any criminal penalties, an administrative penalty of up to $10,000. The penalty may be imposed by the Department of Fish and Wildlife (Department), subject to specified procedures and requirements.

6. Authorizes the payment by the court of a reward of up to $500 to any person providing information leading to a conviction or entry of judgment, as specified.

7. Provides that upon conviction or other entry of judgment, any seized ivory or rhinoceros horn shall be forfeited and maintained by the Department for educational or training purposes, donated for education or research, or destroyed, as specified.

8. Repeals existing provisions of law allowing possession of elephant parts possessed or imported prior to June 1, 1977.

9. Makes relevant legislative findings and declarations, defines various terms, and provides that provisions of this bill are severable.

10. Delays the operative date of the bill until July 1, 2016.

Background

Throughout the world, most elephant populations are in serious decline and are classified as threatened, endangered or critically endangered. Illegal poaching for ivory is a significant contributor to the decline. The Rhinocerotidae family includes five species of rhinoceros. Four of the five species are listed as endangered and some subspecies are already extinct. Reports suggest up to 1,000 rhinos are killed per year for their horns which are used for traditional medicines in some cultures.

The U.S. is the second largest market for ivory, such as from elephant tusks, in the world after China. California is the second largest state market after New York. (Both New York and New Jersey enacted new laws in 2014 banning the ivory trade.) According to the U.S. Fish and Wildlife Service (USFWS), a substantial amount of elephant ivory is illegally imported into the U.S. domestic market. The USFWS acknowledges it is extremely difficult to differentiate legally acquired ivory from ivory derived from elephant poaching. According to the USFWS, criminal investigations and anti-smuggling efforts have clearly shown that legal ivory trade can serve as a cover for illegal trade. The USFWS advises that by significantly restricting ivory trade in the U.S., it will be more difficult to launder illegal ivory into the market and thus reduce the threat of poaching to threatened elephant populations.

Previous surveys identified Los Angeles and San Francisco as the U.S. cities with the highest proportions of potentially illegal ivory sales, and the largest ivory markets overall, behind New York City. A 2014 study of the two cities by the Natural Resources Defense Council found over 1,250 ivory items offered for sale in over 100 businesses in Los Angeles and San Francisco between 77% and 90% of the ivory observed was determined in all likelihood to be illegal in Los Angeles under California law and there were similar findings in San Francisco. The study also found that the incidence of recently manufactured ivory had roughly doubled to 50% from 2006 to 2014.

Comments

Closing loopholes in existing law. This bill addresses loopholes in existing law that make enforcing the ban on the import and sale of ivory difficult.

NOTE: For additional information, please see the Senate Natural Resources and Water Committee analysis.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• Minor and absorbable costs to the Fish and Game Preservation Fund (special/General Fund) for the Department to update regulations.

• Unknown cost pressures, potentially up to $1.2 million annually ongoing and $1 million in one-time costs, to the Fish and Game Preservation Fund (special/General Fund) to the Department for enforcement. These costs may be at least partially offset by criminal and civil penalties.

SUPPORT: (Verified 8/28/15)

East Bay Zoological Society (co-source)

Humane Society of the United States (co-source)

Natural Resources Defense Council (co-source)

American Federation of State, County and Municipal Employees

American Society for the Prevention of Cruelty to Animals

Animal Legal Defense Fund

Animals Asia

Aquarium of the Bay

Asian Pacific Alliance for Wildlife & Sustainability

Big Life Foundation

Bornean Sun Bear Conservation Centre

Budongo Conservation Field Station

California Academy of Sciences

California Association of Zoos and Aquariums

California Commission on Asian and Pacific Islander American Affairs

California District Attorneys Association

California League of Conservation Voters

California Travel Association

California Wolf Center

Chelsea Clinton, the Clinton Foundation

City of Los Angeles

City of Los Angeles, Mayor, Eric Garcetti

City of Oakland

Defenders of Wildlife

Enough Project

Ewaso Lions

Humane Society Veterinary Medical Association

International Fund for Animal Welfare

Lubee Bat Conservancy

March for Elephants

Monterey Bay Aquarium

New Nature Foundation

Oakland Zoo

Performing Animal Welfare Society

Relief Interational

Resolve LRA Crisis Initiative

San Francisco Board of Supervisors

San Francisco Commission of Animal Control and Welfare

San Francisco SPCA

SeaWorld San Diego

Sierra Club California

State Humane Association of California

The Nature Conservancy

U.S. House of Representatives, Member of Congress, Alan Lowenthal

U.S. House of Representatives, Member of Congress, Jared Huffman

U.S. House of Representatives, Member of Congress, John Garamendi

U.S. House of Representatives, Member of Congress, Mark DeSaulnier

U.S. House of Representatives, Member of Congress, Michael Honda

U.S. House of Representatives, Member of Congress, Susan A. Davis

U.S. House of Representatives, Member of Congress, Ted Lieu

U.S. Senate, Senator, Dianne Feinstein

Uganda Carnivore Program

Utopia Scientific

WildAid

Wildlife Alive

Wildlife Conservation Society

Numerous individuals

OPPOSITION: (Verified 8/28/15)

California Rifle and Pistol Association

California Sportsman's Lobby Inc.

Crossroads of the West Gun Shows

Ivory Education Institute

National Rifle Association

National Shooting Sports Foundation, Inc.

Outdoor Sportsmen's Coalition of California

Robert Cullen, Mayor, King City

Safari Club International

Scrimshaw Gallery

The Pearl Guys

Numerous individuals

ARGUMENTS IN SUPPORT: According to the author, “[o]ne of the most effective ways to protect elephants and rhinos from extinction is to eliminate the illegal market for poached ivory and rhino horn by prohibiting their purchase and sale.”

“On average, 96 elephants per day are brutally killed for their ivory. […] This type of species loss is unsustainable and African elephants are now being slaughtered faster than they are being born – which will eventually result in their extinction.”

“Protecting and preserving the elephant and rhinoceros populations is a key national and international imperative. Elephants are known as a ‘keystone’ species because their presence is critical to habitat management and environmental balance.”

“The sale of elephant ivory is also a known source of financing for terrorist groups such as Boko Haram, which was responsible for the kidnapping of 300 Nigerian school girls, among other heinous acts.”

“California and the federal government have existing laws banning the commercial sale of ivory and these laws have been on the books since 1977 and 1989.”

“However, both the federal and state laws have grandfathering provisions that allow for the sale of ‘antique ivory’ acquired prior to the enactment of the ban. These grandfathering provisions make current law nearly impossible to enforce as determining the age of ivory based on observation alone is very difficult.”

ARGUMENTS IN OPPOSITION: The National Rifle Association (NRA) writing in opposition supports efforts to “stop poaching and the illegal trade” but argue that “AB 96 would not contribute to that goal.” The NRA argues that collectors “have legally purchased firearms that incorporate ivory features for decades. These include some of American’s most historically significant and collectible guns.” The NRA continues that exceptions in AB 96 for antiques do not adequately address their concerns as it would be difficult to meet the exception’s requirements. The NRA argues that this constitutes a taking of property.

Numerous individual scrimshaw artists, collectors, and dealers wrote in opposition to AB 96. (Scrimshaw is the name given to scrollwork, engravings, and carvings done in bone or ivory. Traditionally it refers to the handiwork created by whalers made from harvested whales.) Reasons cited to oppose vary, and include loss of livelihood, a taking of property, mammoths and mastodons are already extinct, existing federal and state restrictions on the ivory trade are sufficient, existing alternative domestic ivory stockpiles are sufficient and do not present a threat to any species, scrimshaw is an uniquely American art form, fossil ivory and new ivory are easily distinguishable, and other countries are more responsible for the illegal ivory trade, among others.

ASSEMBLY FLOOR: 62-14, 6/2/15

AYES: Achadjian, Alejo, Travis Allen, Baker, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, Maienschein, McCarty, Medina, Melendez, Mullin, Nazarian, O'Donnell, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Waldron, Weber, Wilk, Williams, Wood, Atkins

NOES: Bigelow, Frazier, Beth Gaines, Gallagher, Grove, Harper, Jones, Kim, Lackey, Mathis, Obernolte, Olsen, Patterson, Wagner

NO VOTE RECORDED: Chang, Chávez, Linder, Mayes

Prepared by: Katharine Moore / N.R. & W. / (916) 651-4116

8/30/15 19:49:02

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 96 (Atkins) - Animal parts and products: importation or sale of ivory and rhinoceros horn.

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 96 would modify and expand the prohibition of the importation, sale, and purchasing of ivory and rhinoceros horn.

Fiscal Impact:

• Minor and absorbable costs to the Fish and Game Preservation Fund (special/General Fund) for the Department of Fish and Wildlife (DFW) to update regulations.

• Unknown cost pressures, potentially up to $1.2 million annually ongoing and $1 million in one-time costs, to the Fish and Game Preservation Fund (special/General Fund) to DFW for enforcement. These costs may be at least partially offset by criminal and civil penalties.

Background:

Under existing law, a person is prohibited from importing into California for commercial purposes with intent to sell, or to sell within the state, the dead body, or any part of, any elephant (Penal Code §653o). However, Section 5 of Chapter 692 of the Statutes of 1976 excluded from this prohibition any elephant bodies or parts that was imported prior to January 1, 1977. This section also placed the burden of proof to demonstrate the items were imported prior to January 1, 1977 are placed upon the defendant.

Proposed Law:

This bill would delete the exemption on the importation or sale of elephant bodies or parts that were imported prior to January 1, 1977.

This bill would also create a new ban the sale, purchase, and importation of ivory and rhinoceros horn within the Fish and Game Code. Ivory would be defined as the tooth or tusk from a species of elephant, hippopotamus, mammoth, walrus, whale, or narwhal.

The following would be exempted from the ban:

• Law enforcement activity being undertaken by a state or federal employee;

• Activities authorized by federal law;

• Ivory or rhinoceros horn that is part of a musical instrument and is less than 20% of by volume of the instrument if the instrument was manufactured no later than 1975;

• Ivory or rhinoceros horn that is part of an antique and is less than 5% by volume of the antique, if there is documentation that the antique is at least 100 years old; or

• The purchase or sale of the ivory or rhinoceros horn is for educational or scientific purposes and the item was legally acquired before 1991 and it is transferred or sold before July 1, 2016.

This bill would establish specific criminal penalties for violations of this prohibition.

This bill would also establish the procedure by which civil and administrative penalties may be imposed.

Staff Comments:

This bill would not require specific levels of enforcement, however the bill create cost pressures to enforce the new provisions. Enforcement costs would depend on the number of enforcement actions and the nature of those actions. For example, DFW cites that the investigative costs for violations can vary between $150 and $150,000 per incident. Higher cost investigations are for those cases that may require specially-trained wildlife officers, undercover operations, and covert surveillance.

Because of this wide variability in investigative costs, DFW assumes that this bill would require them to develop infrastructure (staff and equipment) to provide for the greatest level of enforcement. This would require, according to DFW, four wardens, one Lieutenant, a wildlife forensic specialist, legal counsel, and one governmental program analyst to provide clerical and administrative support for an annual costs of $1.2 million. DFW also estimates needing approximately $1 million in one-time costs for sampling and analysis equipment.

Staff notes that DFW’s estimate does not take into account the fact that at least some of these enforcement cost pressures, if not most, are preexisting because of the current Penal Code prohibitions on elephant bodies and parts. Existing enforcement cost pressures are significant because DFW does not currently spend significant resources on enforcement of those provisions. Instead, DFW has relied on enforcement by the US Fish and Wildlife Service. DFW believes that the expansion of the ivory and rhinoceros horn prohibition would make it more likely that they would have to undertake the enforcement action rather than the federal government.

Staff notes that this bill could arguably reduce enforcement cost pressures by deleting the exemption on imports made before 1977. It is very difficult, if not impossible, to verify when a particular animal part was imported. Thus the existing exemption has made enforcement very difficult and expensive. The age or import time of the ivory or horn under this bill is no longer relevant under this bill (the date requirements for the musical instrument and antique exemptions are based on the age of the instrument and antique piece as a whole, not the ivory part), thereby potentially easing enforcement actions.

The department notes that it may incur additional costs in the $10,000 to $30,000 range to implement the exemption for educational or scientific purposes. However, given that this exemption essentially expires after July 1, 2016, this would be a relatively minor one-time cost.

This bill constitutes a state mandate as it creates a new crime. However, under the California Constitution, costs associated with this mandate are not reimbursable.

-- END --

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Fran Pavley, Chair

2015 - 2016 Regular

Bill No: AB 96 Hearing Date: June 23, 2015

Subject: Animal parts and products: importation or sale of ivory and rhinoceros horn.

BACKGROUND AND EXISTING LAW

Existing federal laws governing the wildlife importation include the Lacey Act, the Endangered Species Act (ESA) and the African Elephant Conservation Act. The Lacey Act makes it a federal offense to violate US state, tribal or foreign wildlife trade statutes, treaties and regulations, and prohibits the import or sale of wildlife taken in violation of any federal, state, tribal of foreign wildlife law, among other provisions. The ESA seeks to conserve endangered and threatened species, and prohibits a person from importing or obtaining any species that is listed as threatened or endangered. The ESA implements the import and export regulations for wildlife noted in the text of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES, described below). The African Elephant Conservation Act restricts the trade in African elephants and was motivated, in part, to help reduce poaching of African elephant populations.

Existing law makes it illegal to import into California for commercial purposes with intent to sell, or to sell within the state, the dead body of any elephant or any part of it. Violations are punishable as a misdemeanor and are subject to a fine of between $1,000 and $5,000, or imprisonment in county jail for not more than six months, or both the fine and imprisonment, for each violation.

Existing law provides in uncodified language that no provision of law shall prohibit the possession with intent to sell, or sale of the dead body of any elephant on or after June 1, 1977, or any part of or product made from it, or the possession with intent to sell or sale of any such item on or after such date which was imported prior to January 1, 1977.

Existing law further provides that the burden of proof to demonstrate that the items described above were imported prior to January 1, 1977 shall be placed upon the defendant.

The US is the second largest market for ivory, such as from elephant tusks, in the world after China. California is the second largest state market after New York. (Both New York and New Jersey enacted new laws in 2014 banning the ivory trade.) According to the US Fish and Wildlife Service (USFWS), a substantial amount of elephant ivory is illegally imported into the US domestic market. The USFWS acknowledges it is extremely difficult to differentiate legally acquired ivory from ivory derived from elephant poaching. According to the USFWS, criminal investigations and anti-smuggling efforts have clearly shown that legal ivory trade can serve as a cover for illegal trade. As one example, USFWS and state officers seized more than two million dollars of illegal elephant ivory from two New York City retail stores in 2012. The USFWS advises that by significantly restricting ivory trade in the United States, it will be more difficult to launder illegal ivory into the market and thus reduce the threat of poaching to threatened elephant populations.

Previous surveys identified Los Angeles and San Francisco as the US cities with the highest proportions of potentially illegal ivory sales, and the largest ivory markets overall, behind New York City. A 2014 study of the two cities by the Natural Resources Defense Council found over 1,250 ivory items offered for sale by 107 vendors, including 77 vendors in Los Angeles and 30 vendors in San Francisco. Between 77% and 90% of the ivory observed was determined in all likelihood to be illegal in Los Angeles under California law and a corresponding 47% to 60% was likely to also be illegal under federal law. In San Francisco, the results were similar. The study also found that the incidence of recently manufactured ivory had roughly doubled to 50% from 2006 to 2014.

Throughout the world, most elephant populations are in serious decline and are classified as threatened, endangered or critically endangered. Illegal poaching for ivory is a significant contributor to the decline. Two species of elephants – the African and Asian elephants – are generally recognized, and male African elephants are the largest terrestrial animal alive today (reaching a height of 13 feet and a weight of over 15,000 pounds). The current population of elephants in Africa is uncertain. The USFWS estimates the population at about 600,000 which is a decline of about 50% since the 1970s. The population of Asian elephants is thought to be less than 40,000 which also represents a significant decline over the last 100 years.

According to a study published in the August issue of the Proceedings of the National Academy of Sciences – a highly-regarded, peer-reviewed scientific journal – an estimated 100,000 African elephants were illegally slaughtered from 2010 – 2012. Given these levels of poaching, some scientists believe the population estimate today is lower than the 600,000 noted above.

Elephants live in matriarchal family groups, can live up to 70 years in the wild and are known to be intelligent animals – similar to primates and whales. They use multiple modes of communication, appear to have self-awareness and exhibit emotional responses to sick, dying and dead elephants.

The Rhinocerotidae family includes five species of rhinoceros. Two species – the White and Black Rhinoceros – are native to Africa and three species – the Indian, Javan and Sumatran – are native to South Asia. One of the two subspecies of White Rhinoceros is endangered and Black Rhinoceros populations are thought to be about 10% of historic levels. The three Asian species are all endangered. Some Asian subspecies have already gone extinct and one subspecies of the Javan Rhinoceros is now only a small population of 35 – 40 animals in West Java. Reports suggest up to 1000 rhinos are killed per year for their horns which are used for traditional medicines in some cultures.

PROPOSED LAW

This bill would prohibit the importation or sale of ivory or rhinoceros horn in California. Specifically, this bill would:

1. Prohibit a person from purchasing, selling, offering for sale, possessing with intent to sell, or importing with intent to sell, ivory or rhinoceros horn, with specified exceptions. Ivory means a tooth or tusk from a species of elephant, hippopotamus, mammoth, mastodon, walrus, warthog, whale, or narwhal, whether raw or worked, as specified.

2. Exempt from the above prohibition are all of the following:

1. State or federal employees undertaking a law enforcement activity.

2. Activities authorized by federal law, as specified.

3. Ivory or rhinoceros horn that is part of a musical instrument and is less than 20 percent by volume of the instrument, if the owner or seller provides historical documentation that the item was manufactured no later than 1975.

4. Ivory or rhinoceros horn that is part of a bona fide antique and is less than 5 percent by volume of the antique, if the owner or seller provides historical documentation that the antique is not less than 100 years old.

5. The purchase, sale, offer for sale, possession with intent to sell or import with intent to sell ivory or rhinoceros horn for educational or scientific purposes, as specified, including that the item was legally acquired before January 1, 1991 and was not transferred for financial gain or profit after July 1, 2016.

3. Create a presumption that ivory or rhinoceros horn possessed in a retail or wholesale outlet commonly used for buying or selling of similar items is evidence of possession with intent to sell, as specified.

4. Authorize criminal penalties for a violation of this bill as follows:

   1. For a first conviction involving ivory or rhinoceros horn valued at $250 or less, the offense shall be a misdemeanor punishable by a fine of between $1,000 and $10,000, imprisonment in county jail for not more than 30 days, or both the fine and imprisonment;

   2. For a first conviction involving ivory or rhinoceros horn valued at more than $250, the offense shall be a misdemeanor punishable by a fine of between $5,000 and $40,000, imprisonment in county jail for not more than one year, or both the fine and imprisonment;

   3. For a second or subsequent conviction involving ivory or rhinoceros horn valued at $250 or less, the offense shall be a misdemeanor punishable by a fine of between $5,000 and $40,000, imprisonment in county jail for not more than one year, or both the fine and imprisonment; and

   4. For a second or subsequent conviction involving ivory or rhinoceros horn valued at more than $250, the offense shall be a misdemeanor punishable by a fine of between $10,000 and $50,000 or an amount equal to two times the total value of the ivory or rhinoceros horn, whichever is greater, imprisonment in county jail for not more than one year, or both the fine and imprisonment.

5. Authorize, in addition to any criminal penalties, an administrative penalty of up to $10,000. The penalty may be imposed by the Department of Fish and Wildlife (department), subject to specified procedures, including the right to request a hearing, and to petition for court review of a final administrative order. Administrative penalties shall be used for law enforcement purposes by the department.

6. Authorize the payment by the court of a reward of up to $500 to any person providing information leading to a conviction or entry of judgment, as specified.

7. Provide that upon conviction or other entry of judgment, any seized ivory or rhinoceros horn shall be forfeited and maintained by the department for educational or training purposes, donated for education or research, or destroyed, as specified.

8. Repeal existing provisions of law allowing possession of elephant parts possessed or imported prior to June 1, 1977.

9. Provide that provisions of this bill are severable.

10. Make legislative findings and declarations regarding the threats to elephants and rhinoceros of illegal poaching and wildlife trafficking, and actions being taken at the international, federal and state levels to protect these species from extinction.

11. Define various terms for purposes of this bill.

12. Delay the operative date of the bill until July 1, 2016.

ARGUMENTS IN SUPPORT

According to the author, “[o]ne of the most effective ways to protect elephants and rhinos from extinction is to eliminate the illegal market for poached ivory and rhino horn by prohibiting their purchase and sale.”

“Growing demand for elephant ivory and rhinoceros horn is causing prices to soar for these illegal commodities and the black market for poachers trading in these illegal goods to thrive.”

“On average, 96 elephants per day are brutally killed for their ivory. […] This type of species loss is unsustainable and African elephants are now being slaughtered faster than they are being born – which will eventually result in their extinction.”

“Protecting and preserving the elephant and rhinoceros populations is a key national and international imperative. Elephants are known as a “keystone” species because their presence is critical to habitat management and environmental balance.”

“The sale of elephant ivory is also a known source of financing for terrorist groups such as Boko Haram, which was responsible for the kidnapping of 300 Nigerian school girls, among other heinous acts.”

“California and the federal government have existing laws banning the commercial sale of ivory and these laws have been on the books since 1977 and 1989.”

“However, both the federal and state laws have grandfathering provisions that allow for the sale of “antique ivory” acquired prior to the enactment of the ban. These grandfathering provisions make current law nearly impossible to enforce as determining the age of ivory based on observation alone is very difficult.”

ARGUMENTS IN OPPOSITION

The National Rifle Association (NRA) writing in opposition supports efforts to “stop poaching and the illegal trade” but argue that “AB 96 would not contribute to that goal.” The NRA argues that collectors “have legally purchased firearms that incorporate ivory features for decades. These include some of American’s most historically significant and collectible guns.” The NRA continues that exceptions in AB 96 for antiques do not adequately address their concerns because owners may not have the documentation to prove that an antique gun is more than 100 years old. In addition, the exception for bona fide antiques applies only to antiques with less than a 5% ivory content which would exclude some weapons that were lawfully purchased prior to the ban. The NRA argues that this constitutes a taking of property.

Numerous individual scrimshaw artists, collectors, and dealers wrote in opposition to AB 96. (Scrimshaw is the name given to scrollwork, engravings, and carvings done in bone or ivory. Traditionally it refers to the handiwork created by whalers made from harvested whales, although other sources of ivory or bone may also be used.) Reasons cited to oppose vary, and include loss of livelihood, a taking of property, mammoths and mastodons are already extinct, existing federal and state restrictions on the ivory trade are sufficient, existing alternative domestic ivory stockpiles are sufficient and do not present a threat to any species, scrimshaw is an uniquely American art form, fossil ivory and new ivory are easily distinguishable, and other countries are more responsible for the illegal ivory trade, among others.

COMMENTS

Closing loopholes in existing law. This bill addresses loopholes in existing law that make enforcing the ban on the import and sale of ivory difficult. It does this by repealing the exemption for ivory possessed or imported prior to 1977, although limited exceptions for musical instruments and antiques, as specified, are retained. As noted above, the currently legal trade in ivory has been shown to be a cover for the illegal trade. This bill also codifies the provision placing the burden of proof on the defendant to prove the limited exception for musical instruments and antiques applies. Additionally, the bill adds explicit protection for rhinoceros and increases penalties for violations.

Fossil ivory is not readily-distinguishable from new ivory. Fossil ivory is visually indistinguishable in many instances from elephant ivory and therefore creates an avenue for black market ivory into California. According to the author, articles made from elephant ivory can be altered to resemble mammoth ivory. The articles are then labeled as “mammoth ivory” or similar to escape detection. While a trained person may be able to distinguish between mammoth ivory and elephant ivory, most enforcement agents do not have the appropriate skills to do so. The USFWS’ online ivory identification guide cautions that “an examination of the carved ivory object by a trained scientist is still necessary to obtain and provide identification of the species source.”

Other states’ actions. Both New York and New Jersey enacted new laws in 2014 banning the ivory trade. Other states currently considering adoption of new stronger laws prohibiting commercial trade in ivory include Hawaii, Florida, Connecticut and Massachusetts.

The illegal ivory trade may be a source of funding for terrorist activities. Involvement of transnational organized crime operations in the illicit ivory trade has been documented by international authorities. In addition, numerous news outlets have reported on suspicions that ivory poaching is becoming a growing source of funding for several terrorist organizations, including the Janjaweed militia in Sudan, the Lord's Resistance Army in Uganda, and, possibly, terrorist groups in Somalia.

This bill does not appear to constitute a taking. The US Supreme Court has disagreed that a law similar to this bill amounts to a taking. The only US Supreme Court case directly addressing a takings challenge to wildlife protections laws is Andrus v. Allard, 444 U.S. 51 (1979) which held that a law prohibiting the commercial sale of legally acquired bird parts did not amount to a taking because, while the ban foreclosed the most profitable use of the bird parts (sales), it still allowed other economically beneficial uses, such as possession, transport, donation and exhibition, as does this bill. Additionally, AB 96 includes a delayed effective date which would allow, for example, guns with ivory that do not meet the exceptions to be sold until June 2016. The recent shark fin ban bill (AB 376, Fong, c. 524, Statutes of 2011) contained a similar provision to allow restaurants to sell their shark fin stocks. That said, there will be economic disruption to those who previously benefited from the ivory and rhinoceros horn trade in California.

Status of Federal efforts. In addition to animal listings under the federal ESA, including action as recent as the 2014 threatened listing of the southern population of the White Rhinoceros, President Obama issued an Executive Order committing the U.S. to step up efforts to combat wildlife trafficking, including illegal commercial trade in elephant ivory in July 2013. The USFWS is promulgating new regulations to implement a more complete ban on commercial trade in elephant ivory. The regulations, which are a work in progress, generally ban all commercial imports of African elephant ivory, with certain specified exceptions; permit Asian elephant ivory to be imported under limited circumstances with proper documentation; prohibit the export of elephant ivory from the U.S. with certain specified exceptions; and make it illegal to engage in interstate or intrastate sales of ivory unless certain specified exceptions apply.

International Efforts: The Convention on International Trade in Endangered Species of Wild Fauna and Flora, known as CITES, is an international voluntary agreement between governments, the aim of which is to ensure that international trade in specimens of wild animals and plants does not threaten their survival. The United States is a signatory to the agreement, which today has 180 participating parties. Importation of ivory for commercial purposes has been banned under CITES since 1990. Wildlife species of concern are listed under CITES in either Appendix I, II, or III. Species listed in Appendix I are those species that are the most endangered and threatened with extinction. Commercial trade in these species is generally prohibited, with certain exceptions. Appendix II lists species that may become threatened with extinction unless trade is closely controlled. Trade in Appendix II species may be authorized pursuant to an export permit. Asian elephants have been listed in Appendix I since 1975; African elephants were listed under Appendix II in 1977, moved to Appendix I in 1990, and today are listed under either Appendix I or Appendix II, depending on the country and subpopulation. Rhinoceros are generally listed under Appendix I, although some Southern White Rhinoceros subpopulations are listed under Appendix II.

According to a recent report of CITES, over 20,000 elephants were poached in Africa alone in 2013. Poaching remains alarmingly high and continues to far exceed the natural elephant population growth rates. The number of elephants poached exceeded 20,000 for each year from 2011 to 2013. A 2013 CITES report on rhinoceros similarly found that illegal trade in rhinoceros horn continues to be one of the most structured criminal activities that CITES must address currently. CITES also reports that there was a clear increase in large seizures of ivory in Africa, indicative of transnational organized crime involvement in the illicit ivory trade, and clear indications that organized criminal groups are also involved in the poaching and illegal trade of rhinoceros horn. Since 2010, losses of rhinoceros in South Africa from poaching have been increasing. While overall population numbers there had not declined as of 2013, the report warned some populations could go into decline if the illegal killing escalates. The report concludes that rhinoceros are facing a crisis that threatens to reverse the conservation achievements of the last two decades if not addressed.

SUPPORT

Humane Society of the United States (sponsor)

Natural Resources Defense Council (sponsor)

East Bay Zoological Society (sponsor)

American Federation of State, County and Municipal Employees

American Society for the Prevention of Cruelty to Animals

Animal Legal Defense Fund

Aquarium of the Bay

Asian Pacific Alliance for Wildlife & Sustainability

Animals Asia

Big Life Foundation

Bornean Sun Bear Conservation Centre

Budongo Conservation Field Station

California Academy of Sciences

California Association of Zoos and Aquariums

California Commission on Asian Pacific Islander American Affairs

California District Attorneys Association

California League of Conservation Voters

California Wolf Center

City of Los Angeles

City of Oakland

United States Representatives Davis, Honda, Garamendi, Huffman, Lowenthal, Lieu, DeSaulnier

Defenders of Wildlife

Enough Project

Earth Island Institute

Humane Society Veterinary Medical Association

International Fund for Animal Welfare

Los Angeles Mayor Eric Garcetti

Lubee Bat Conservancy

March for Elephants

Monterey Bay Aquarium

The Nature Conservancy

New Nature Foundation

Performing Animal Welfare Society

San Francisco Board of Supervisors

San Francisco Commission of Animal Control and Welfare

San Francisco SCPA

Sea World San Diego

Sierra Club California

WildAid

Wildlife Alive

Wildlife Conservation Society

United States Senator Diane Feinstein

Relief International

Resolve LRA Crisis Initiative

Uganda Carnivore Program

Utopia Scientific

Ewaso Lions

Two Individuals

OPPOSITION

California Rifle and Pistol Association

California Sportsman's Lobby Inc.

Crossroads of the West Gun Shows

Ivory Educational Institute

National Rifle Association

National Shooting Sports Foundation, Inc.

Outdoor Sportsmen's Coalition of California

Robert Cullen, Mayor, King City

Safari Club International

Scrimshaw Gallery

Ten Individuals

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 96

Author:(Atkins)

As Introduced Ver:January 7, 2015

Majority vote

SUMMARY:

Prohibits the importation or sale of elephant ivory or rhinoceros horn in California. Specifically, this bill:

1. States legislative findings and declarations regarding the threats to elephants and rhinoceros of illegal poaching and wildlife trafficking, and actions being taken at the international, federal and state levels to protect these species from extinction.

2. Prohibits a person from purchasing, selling, offering for sale, possessing with intent to sell, or importing with intent to sell, ivory or rhinoceros horn, with specified exceptions.

3. Exempts from the above prohibition all of the following:

   1. State or federal employees undertaking a law enforcement activity.

   2. Activities authorized by federal law, as specified.

   3. Ivory or rhinoceros horn that is part of a musical instrument and is less than 20% by volume of the instrument, if the owner or seller provides historical documentation that the item was manufactured no later than 1975.

   4. Ivory or rhinoceros horn that is part of a bona fide antique and is less than 5 percent by volume of the antique, if the owner or seller provides historical documentation that the antique is not less than 100 years old.

4. Authorizes the Department of Fish and Wildlife (DFW) to permit the purchase, sale, possession or importation of ivory or rhinoceros horn for educational or scientific purposes by a bona fide educational or scientific institution, provided the activity is not prohibited by federal law, and the item was legally acquired before January 1, 1991, and was not transferred for financial gain or profit after July 1, 2016.

5. Creates a presumption that ivory or rhinoceros horn possessed in a retail or wholesale outlet constitutes possession with intent to sell.

6. Authorizes criminal penalties for a violation of this bill as follows:

   1. For a first conviction involving ivory or rhinoceros horn valued at $250 or less, the offense shall be a misdemeanor punishable by a fine of not less than $1,000 or more than $10,000, imprisonment in county jail for not more than 30 days, or both the fine and imprisonment;

   2. For a first conviction involving ivory or rhinoceros horn valued at more than $250, the offense shall be a misdemeanor punishable by a fine of not less than $5,000 or more than $40,000, imprisonment in county jail for not more than one year, or both the fine and imprisonment;

   3. For a second or subsequent conviction involving ivory or rhinoceros horn valued at $250 or less, the offense shall be a misdemeanor punishable by a fine of not less than $5,000 or more than $40,000, imprisonment in county jail for not more than one year, or both the fine and imprisonment; and

   4. For a second or subsequent conviction involving ivory or rhinoceros horn valued at more than $250, the offense shall be a misdemeanor punishable by a fine of not less than $10,000 or more than $50,000 or an amount equal to two times the total value of the ivory or rhinoceros horn, whichever is greater, imprisonment in county jail for not more than one year, or both the fine and imprisonment.

7. Authorizes, in addition to any criminal penalties, a civil or administrative fine of up to $10,000. Authorizes civil penalties to be imposed by the DFW, subject to specified procedures, including the right to request a hearing, and to petition for court review of a final administrative order.

8. Authorizes the payment of a reward of up to $500 to any person providing information leading to a conviction or entry of judgment.

9. Provides that upon conviction or other entry of judgment, any seized ivory or rhinoceros horn shall be forfeited.

10. Repeals existing provisions of law allowing possession of elephant parts possessed or imported prior to June 1, 1977.

11. Defines various terms for purposes of this bill.

12. Contains a delayed operative date of July 1, 2016.

EXISTING LAW:

1. Makes it unlawful to import into this state for commercial purposes with intent to sell, or to sell within the state, the dead body, or any part or product thereof, of any elephant. Violations are punishable as a misdemeanor, subject to a fine of not less than $1,000 and not more than $5,000, or imprisonment in county jail for not more than six months, or both the fine and imprisonment.

2. Provides in uncodified language, that no provision of law shall prohibit the possession with intent to sell, or sale of the dead body, or any part or product thereof, of any elephant prior to 1977, or the possession with intent to sell or the sale of any such item on or after such date which was imported prior to the effective date of the act in 1977. Further provides that the burden of proof to demonstrate that such items were imported prior to the effective date of the act shall be placed upon the defendant.

FISCAL EFFECT:

1. According to the Assembly Appropriations Committee:

1. Increased one-time General Fund (GF) costs to DFW for staffing start-up and equipment purchases of up to $1.7 million.

2. Increased on-going GF costs to DFW of over $1 million annually.

3. Unknown, potential increased revenue resulting from increased penalties and enforcement.

Implementation of this bill will require DFW to lead enforcement efforts, develop the forensic capacity to analyze evidence of violations, and develop and implement administrative hearings and civil penalties. It is unknown how many violations exist, and to what extent the new law will result in further compliance or force underground sales.

COMMENTS:

The author has introduced this bill to protect elephants and rhinoceros from poaching by eliminating the market value of poached ivory and rhinoceros horn in California. Background information provided by the author's office notes that the existing law, by grandfathering in ivory possessed and acquired prior to June 1, 1977, makes it virtually impossible to enforce the ban on ivory, since it is very difficult to determine the age of the ivory. Although the existing law places the burden of proof on the defendant, that provision was never codified and therefore is rarely applied in court. The author further notes that: "Growing demand for elephant ivory and rhinoceros horn is causing prices to soar for these illegal commodities and the black market for poachers trading in these illegal goods to thrive. The United States is one of the largest consumers of illegal ivory in the world, and California is the second largest U.S. retail market for illegal ivory behind the state of New York, which recently passed a law banning such sales….On average, 96 elephants per day are brutally killed for their ivory, translating into an average of over 35,000 elephants per year. This type of species loss is unsustainable and African elephants are now being slaughtered faster than they are being born -- which will eventually result in their extinction. Protecting and preserving the elephant and rhinoceros populations is a key national and international imperative." In addition, the current law in California makes no reference to rhinoceros which are poached for their horns and also imperiled.

This bill addresses the loopholes in existing law that make enforcing the ban on importation and sale of ivory difficult by:

1. Repealing the exemption for ivory possessed or imported prior to 1977 (limited exceptions for musical instruments and antiques are retained);

2. Codifying the provision placing the burden of proof on the defendant to prove that the ivory meets the limited exceptions for musical instruments and antiques;

3. Adding express protection for rhinoceros;

4. Increasing penalties for violations.

Worldwide most elephant and rhinoceros populations are in serious decline, and are classified as threatened, endangered or critically endangered. The United States Fish and Wildlife Service (USFWS) estimates the current African elephant population is about 600,000, which is a decrease of about 50% over the past 40 years. Asian elephants numbered around 80,000 near the beginning of the 20th Century, but today's population is less than half that, with about 20,000 living in India and the remainder scattered throughout other Asian countries. According to a study published in an August issue of the Proceedings of the National Academy of Sciences, an estimated 100,000 elephants were illegally slaughtered from 2010 to 2012. More than 30,000 elephants were estimated poached in 2012 alone, and another 20,000 in 2013. With poaching at these levels, some scientists believe the population may be significantly lower today than the estimated 600,000 population referenced above.

Rhinoceros include five species belonging to the family Rhinocerotidae. Two species, the White and Black Rhinoceros, are native to Africa, and three species, the Indian, Javan and Sumatran Rhinoceros, are native to Southern Asia. The White Rhinoceros consists of two subspecies, the northern subspecies, which is endangered, and the southern subspecies, which resides primarily in South Africa and is currently the most abundant of the species. Black Rhinoceros numbers were significantly reduced in the latter half of the 20th Century, have increased some since then, but are still about 90% below historic population levels. The three Asian species are all endangered. A subspecies of the Javan Rhinoceros is already extinct, with the last known individual poached in Vietnam in 2012. The other nominate subspecies of the Javan Rhinoceros is now found only in one small population of 35-40 individuals in West Java, Indonesia.

The Asian elephant was listed as endangered under the federal Endangered Species Act (ESA) in 1976, and the African elephant was listed as threatened under the ESA in 1978. In addition to the ESA protections, the African Elephant Conservation Act, enacted in 1989, prohibits the importation of raw African elephant ivory from any country other than an ivory producing country that belongs to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). The three Asian rhinoceros species, the Black Rhinoceros in Africa, and the northern population of the White Rhinoceros are all listed as endangered under the ESA. The southern population of White Rhinoceros was listed as threatened under the ESA in 2014 due to similarity of appearance with other endangered populations.

Surveys have identified Los Angeles and San Francisco as the United States cities with the highest proportions of potentially illegal ivory sales, and the largest ivory markets overall, after New York City. A 2014 study by the Natural Resources Defense Council found over 1,250 ivory items offered for sale by 107 vendors, including 77 vendors in Los Angeles and 30 vendors in San Francisco. In Los Angeles, between 77% and 90% of the ivory seen was determined to be likely illegal under California law and between 47% and 60% likely illegal under federal law. In San Francisco, approximately 80% of the ivory was determined to be likely illegal under California law, and 52% likely illegal under federal law. The study also found there was a much higher incidence of recently manufactured ivory, roughly doubling from approximately 25% in 2006 to 50% in 2014.

According to the USFWS, a substantial amount of elephant ivory is illegally imported and enters the domestic market in the United States. The USFWS acknowledges it is extremely difficult to differentiate legally acquired ivory from ivory derived from elephant poaching. According to the USFWS, criminal investigations and anti-smuggling efforts have shown that the legal ivory trade can serve as a cover for illegal trade. As one example, USFWS and state officers seized more than two million dollars of illegal elephant ivory from two New York City retail stores in 2012. The USFWS advises that by significantly restricting ivory trade in the United States, it will be more difficult to launder illegal ivory into the market and thus reduce the threat of poaching to imperiled elephant populations. Involvement of transnational organized crime operations in the illicit ivory trade has also been documented by international authorities, and news outlets have reported that ivory poaching is becoming a growing source of funding for several terrorist organizations.

In July 2013 President Obama issued an Executive Order committing the United States to step up efforts to combat wildlife trafficking, including illegal commercial trade in elephant ivory. The USFWS is promulgating new regulations to implement a more complete ban on commercial trade in elephant ivory. The regulations generally ban commercial imports of African elephant ivory, with certain exceptions; permit Asian elephant ivory to be imported under limited circumstances with proper documentation; prohibit the export of elephant ivory from the United States. with certain specified exceptions; and make it illegal to engage in interstate or intrastate sales of ivory, again with exceptions.

Supporters emphasize this bill will clarify California’s law prohibiting ivory importation and sale, protect endangered species, and aid in combating international terrorism. Supporters stress that elephant poaching may soon drive the species to the brink of extinction. In addition, trade from the ivory black market is now a crucial source for funding terrorist groups such as the Janjaweed militia in Sudan and the Lord’s Resistance Army in Uganda. Transnational organized crime has also increasingly taken part in the illegal trade because of the lucrative profits from ivory sales. If current poaching rates continue, elephants and rhinoceros could be extinct in a decade or less. Supporters further emphasize one of the most effective ways to protect elephants and rhinoceros is to eliminate the market by prohibiting the purchase and sale of ivory and rhinoceros horn.

Opponents assert this bill will harm collectors and sportsmen who own firearms made with ivory, and would amount to a taking of property by prohibiting the sale of these items. The National Rifle Association argues that the exceptions in this bill for antiques do not adequately address these concerns because owners may not have the documentation to prove that an antique gun is more than 100 years old. In addition, the exception for bona fide antiques applies only to antiques with less than 5% ivory content, which would exclude some weapons that were lawfully purchased prior to the ban.

Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0000803

Date of Hearing: March 25, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 96

Author:(Atkins) – As Introduced Ver:January 7, 2015

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill, as of July 1, 2016, prohibits the importation or sale of elephant or rhinoceros horn in California. Specifically, this bill:

1. Prohibits a person from purchasing, selling, offering for sale, possessing with intent to sell, or importing with intent to sell, ivory or rhinoceros horn, with specified exceptions. Presumes ivory or rhinoceros horns possessed in retail or wholesale outlets constitute possession with intent to sell.
   
   

2. Exempts from the above prohibition all of the following:

   1. State or federal employees undertaking a law enforcement activity and specified activities authorized by federal law.

   2. Documented Musical Instruments manufactured before 1975 containing less than

20% ivory or rhinoceros horn or bonafide 100 year or older antiques containing less than 5% ivory or rhinoceros horn.

3. Authorizes the Department of Fish and Wildlife (DFW) to permit the purchase, sale, possession or importation of ivory or rhinoceros horn for educational or scientific purposes as specified.

4. Authorizes increased criminal penalties for first violations ranging from $1,000 to $40, 000, or imprisonment in county jail for 30 days to one year, or both, depending on the value of the prohibited product.

5. Authorizes increased criminal penalties for subsequent violations from $5,000 to $50,000 or an amount equal to two times the total value of the product (whichever is greater), or imprisonment in county jail for one year, or both depending on the value of the prohibited product.

6. Authorizes DFW to impose prescribed civil penalties or administrative fines up to $10,000 in addition to any criminal penalties.

7. Authorizes the payment of a reward of up to $500 to any person providing information leading to a conviction or entry of judgment.

FISCAL EFFECT:

1. Increased one-time GF costs to DFW for staffing start-up and equipment purchases of up to $1.7 million.

2. Increased on-going GF costs to DFW of over $1 million annually.

3. Unknown, potential increased revenue resulting from increased penalties and enforcement activities.

Implementation of this bill will require DFW to lead enforcement efforts, develop the forensic capacity to analyze evidence of violations, and develop and implement administrative hearings and civil penalties. It is unknown how many violations exist, and to what extend the new law will result in further compliance or force underground sales.

COMMENTS:

1. Rationale. Current law, (Chapter 692, Statutes of 1976) prohibits the importation of any elephant body, body part or product for commercial purposes. Violation of this prohibition is punishable as a misdemeanor subject to either a fine of $1,000 to $5,000, or imprisonment in county jail for up to six months, or both.

This law also contained uncodified provisions including an exemption to allow the sale of elephant bodies, body parts or products that were imported prior to 1977. Uncodified law also places the burden of proof on the defendant to demonstrate items were legally imported prior to 1977.

According to the author, allowing ivory possessed and acquired prior to June 1, 1977, to be sold makes it virtually impossible to enforce the ban since it is difficult to determine the age of ivory. Additionally, although the burden of proof is placed on the defendant, it is uncodified law and rarely applied in court. Further, current law does not expressly apply to rhinoceroses which are also poached for their horns and are imperiled.

This bill addresses the limitations of existing law by: a) repealing the exemption for ivory possessed or imported prior to 1977; b) codifying the burden of proof provision; c) expressly including rhinoceroses in the prohibition; and d) increasing penalties.

2. Background. The United States is the second largest market for ivory in the world after China. California provides the second largest market in the U.S. after NewYork.

Previous surveys identify Los Angeles and San Francisco as cities with the highest proportions of potentially illegal ivory sales. A 2014 Study by the Natural Resources Defense Council (NRDC) identified significant increases in illegal sales and higher incidences, almost double, of recently manufactured ivory from 2006 to 2014.

Species of both Elephants and Rhino are protected under federal law and considered endangered and imperiled.

3. Federal Actions and Legislation. In July 2013, President Obama issued an Executive Order committing the U.S. to increase efforts to combat wildlife trafficking, including illegal commercial trade in elephant ivory. The United States Federal Wildlife Service is currently promulgating new regulations to provide a comprehensive ban.

Senators Dianne Feinstein (D-Calif) and Lindsey Graham (R-S.C.) have introduced S. 27, the Wildlife Trafficking Enforcement Act, to help law enforcement crack down on poachers and transnational criminal organizations by strengthening penalties for wildlife trafficking.

H.R. 697 by Representative Young (R-Alaska) weakens existing provisions of the African Elephant Conservation Act of 1988 to allow the importation and sale of ivory under various scenarios.

4. Other States. Both New York and New Jersey banned ivory trade in 2014. Other states currently considering adoption of new stronger laws prohibiting commercial trade in ivory include Hawaii, Florida, Connecticut and Massachusetts.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081